Dying Declaration: Empowering Citizens To Uphold Justice.

Dying declarations are accorded a sanctity usually not bestowed upon other testimonies. The reasons are quite obvious to discern. When death seems imminent, one holds that the person who is dying has little to lose or little to gain by withholding truth. One may always imagine or see extraordinary circumstances when this wont hold true, but by and large dying declaration is held sacrosanct unless reliable evidence to the contrary exists. Most cases of dying declarations, it seems, belong to burn victims. In India it is the “most popular” way of eliminating a family member, usually a wife or daughter in law, within the confines and secrecy of the four walls of the home. Its popularity stems from the fact that it can be easily and reasonably explained  away as a “cooking accident” or a “suicide”. I remember the case of the eldest daughter (she was called Gutkoo) of a woman who helped us with housekeeping in Delhi. She was rushed at midnight after the “burning incident” to the hospital. Usually such incidents happen at night or very early morning, when chances of the presence of inconvenient witnesses are remote. The persons who rush the victim to the doctor or hospital are again usually the perpetrators. Gutkoo was married for about year and half, and had an infant daughter when attempt on her life was made. In the first declaration she gave to the police on arrival at the hospital, she stated she had accidentally set herself on fire while preparing tea. When her mother called us in the morning to the hospital-Mangala and I visited- we asked Gutkoo to speak without fear after driving her in-laws out of the burns-ward. She then told us that while she was being brought to the hospital her in-laws gave threats of harming her child if she refused to assume the blame for her burns. Poor girl was in severe pain when this gut wrenching torment was foisted on her. She succumbed to the pressure and ended up blaming herself. But when reassured by her mother that she will take care of her child, she disclosed with firm resolve that it was her husband, who had poured kerosene on her and set her on fire after some quarrel. We asked whether she would say this on oath before a designated government official, and she affirmed. Though a person authorised by law is duty bound to take statement of the victim with dispatch, such matters often don’t receive the prompt redress they deserve. We made efforts to move the government machinery that is usually unmoving due to apathy and inertia, and managed to get a SDM (sub divisional magistrate) to come early to record her statement. In it, she clearly held her husband responsible for burning her and the charge against him was later converted to murder upon her demise. She died in just 4/5 days, which is a normal prognosis in severely (80% or more) burnt cases, though victims may sound incredibly lucid in the interim to mislead a novice into a belief of their miraculous recovery. Appropriate sections of IPC and other laws were pressed against the husband, but since we moved out of Delhi one doesn’t know what happened. In any case punishments, when handed out, do not seem to deter prospective felons.
This crime happened in Delhi, and Delhi is not India, though crimes against family members occur everywhere. But, what happens when a magistrate, police, some other government official, or even a doctor is not at hand to record a dying declaration in time; that is before the victim passes away or lapses into coma? Supreme Court (SC) in its recent judgment has admirably addressed this major lacuna, which in the past helped criminals get away with their horrendous deeds. One Dal Singh and his wife were tried for setting ablaze their daughter-in-law, who had been subjected to cruelty in her matrimonial home. The trial court,  Damoh, Madhya Pradesh (MP), had convicted the accused, but Madhya Pradesh High Court (sic) -principal seat of High court (HC) is at Jabalpur with benches at Indore and Gwalior- acquitted the accused doubting the “veracity of the woman’s dying declaration“. News report says that veracity was doubted because vicitm had suffered 100% burn injuries, but doesn’t say who had recorded the dying declaration. The bench of justices B S Chauhan and Dipak Misra of SC upheld the conviction by overturning the HC’s verdict. Justice Chauhan observed while delivering the judgment for the bench, “The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format or procedure for the same,… any member of public could record the statement of a dying person,… The person who records a dying declaration must be satisfied that the maker is in a fair state of mind and is capable of making such a statement,… Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case,“. This pronouncement of SC is now binding on all high courts and subordinate courts, and is applicable through out India. It empowers any person from the public, who need not be a police officer/ doctor/ government official or a magistrate, to record the dying declaration of a victim of dowry or for that matter any other crime. Hopefully, this judgment could go far in securing justice especially for the victims of domestic crimes, a space where one expects to be secure and protected, and where independent witnesses to the crime are not expected to be present as it is a private space. The judgment has at once empowered every citizen and has placed a honourable duty to on her/him to not to shy away if called in for recording a dying declaration of a victim for whom it may be the only hope of getting justice.
Legally it is interesting to note how “wrong notions” can become received wisdom and de facto law, even when there are no de jure legal provisions. Recall the words of justice Chauhan, “The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format or procedure for the same“. The Indian Evidence Act provides in chapter IX (:of witnesses) as to who can testify: “Section 118. Who May Testify: All persons shall be competent to testify unless the Court considers that they are prevented form understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind“. So much so, that an explanatory note says, even testimony of a lunatic may be relied upon if he is deemed capable of understanding the question put to him and of giving cogent answer: “Explanation (p40) – A lunatic is not incompetent to testify, unless he is prevented by his Lunacy from understanding the questions put to him and giving rational answers to them“. It is but a small step when a person who takes down a dying declaration is also called upon to “testify” as to its veracity and the circumstances under which he recorded it. Put in another way, a person competent to testify is also competent to record a dying declaration. Yet, when the law is so clear and is so simply stated, the “unreasonable restrictions” placed on who would be competent to record a dying declaration went on unchallenged for so many decades. Little wonder then, people unreasonably conclude that Law is an Ass. Some may raise a valid doubt as to how one would ensure or be sure of the neutrality of the person recording the dying declaration. The same objection may also be raised regarding a police officer/ doctor/ government official or a magistrate. May be the objection would be much weaker in case of specified persons than in the case of any member from general public. But then there are normal ways to ascertain the “objectivity” of a member of general public. This also tells that one should refuse to record a dying declaration if in a case one is in any way related to or is friendly with any of the concerned parties.
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Rape is another heinous crime that often takes place in private spaces; and at least in India, statistics show, is perpetrated more often than not by a man/men who is/are related to or known to the victim. Rape is an emotive issue, and men (and even women imbued with patriarchy) often blame the victim for “inviting” the assault. That such “thinking” is not confined to just “backward” countries was made once again clear through an article,Is rape legitimate if she dresses provocatively? One author argues yes!, which castigates the book ‘Crime’, specifically its chapter ‘Sex Crimes’, by British author and former host of talk show ‘Crime Watch’, Nick Ross. “In a controversial excerpt that ran in the Sunday Mail, Ross declared that: The main argument of my book is this: we can aggravate crime by tempting fate, and we curb it by playing safe. We have come to acknowledge it is foolish to leave laptops on the back seat of the car. We would laugh at a bank that stored sacks of cash by the front door. We would be aghast if an airport badly skimped on its security….  Our forebears might be astonished at how safe women are today given what throughout history would have been regarded as incitement … they would be baffled that girls are mostly unescorted, stay out late, often get profoundly drunk and sometimes openly kiss, grope or go to bed with one-night stands“. Had he advocated a precautionary principle -that is by taking some precautions women could possibly navigate potential trouble spots better- then it might not have raised the hackles the way it justifiably did. But he chose to, crudely and surprisingly insensitively, compare women, i.e. ‘persons’, to objects like ‘Laptop’ or ‘Cash’. That is knowingly or unknowingly he commodified their bodies. The valiant struggles of feminist have enlarged the definition of what constitutes Rape or Molestation as never before in history. Naturally, men are held to a far higher standard of propriety in these matters than what their male ancestors encountered in earlier times. This well fought freedom from sexual harassment and exploitation that women have achieved at great cost is exactly what he holds against them. Had Ross argued that Our forebears might be astonished at how free men are today given what throughout history would have been regarded as arrogant, rebellious and unbecoming behaviour when making a case for little less equality, fraternity or liberty; would he have met with approving grunts? Surely he would have been hauled over burning coals for such politically incorrect comments. Why should it be different then when it comes to women? Its a telltale sign of applying a different yardstick when it comes to women and the problems they have to face under patriarchy. The other obvious point is, which is not to be missed but is invariably overlooked, that no one blames the ‘Laptop’ or ‘Cash’ for the theft. The blame is squarely and wholly borne by the covetous grasping arms that loot. Yet, when it comes to rape or molestation, ‘victim’ is somehow at fault. The evil lurking in this perverse logic is hardly mitigated by pointing out that unlike laptop or cash women have Will and can choose their actions. Yes!, women can and may take defensive measures, but the culprit clearly lurks in men’s attitudes. It is a separate matter that the “free” Will of women is unfortunately not free of the patriarchal notions of their bodies and sexuality. To see how ubiquitous is the assault on women’s “free will”, one has to only see how cleverly patriarchy’s concept of women’s bodies and sexuality is hammered through repeatedly in sundry advertisements to promote goods and services for women and for men. That such advertisements are not exclusive preserve of the men goes to show the extent to which patriarchy has been internalised by women.
PS: Ross’s line of argument easily leads to the conclusion that women should be wrapped in overflowing, full cover garment like Hijab, or preferably kept locked up at home just like hiding the laptop in  the boot of a car or keeping the cash in a vault to protect them. Wonder whether he would be at ease in the company of fanatical mullahs, but mullahs would certainly understand and approve of his language.
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3 Responses to “Dying Declaration: Empowering Citizens To Uphold Justice.”

  1. Anonymous Says:

    Hello Sadanand, Read your text on "dying declaration"… some thoughts: The meaning of "dying declaration" for me poses a lot of identity questions. Dying declaration presupposes that as the person in question has nothing to lose of gain they will stick to the truth. This may not be true in all cases… revenge for wrongs borne can be motive… but more importantly there is a latent moral authority that seems to be attached to it… that a dying person will not lie… will tell the truth at the end of his/her life… I am frankly not sure this may necessary hold true either… Example: A senior citizen of about 75 commits suicide and jumps from a 10th floor with the suicide note in his pocket after repeatedly threatening daughter-in-law (a widow) that he will do so and involve her through a suicide note in a crimial case and make her pay for all her "wrongs"… these wrongs being trying to stand up and face the world after the demise of her husband and to live a reasonably happy and fruitful life with her son. There is complete lack of evidence that the DIL ever trated him badly… in fact to the contrary. How is such a "dying declaration" to be treated? Of course one can say these ar erare cases of misuse and/or abuse of judicial processes. Nowadays, I find laws are often more abused than used and just as has happened after legislations pertaining to Sexual Harassment, Rape, Molestation, etc oe must now be prepared for fraudulent accusations for vested interests. But at the end of all rational argument "The Greater Good" I suppose must prevail and no legal system can be expected to be fool-proof! So thanks for giving me Food For Thought! RegardsNandita

  2. Sadanand Patwardhan Says:

    Hey Nandita, You are correct in observing the misuse that sometimes may and does take place. Conscious of this fact I had said ‘imagine’ and ‘see’ about such misuse. Finally, in any system or mechanism possibility of misuse always exists, therefore, the need to see the trade off between ‘use’ and ‘misuse’. Suicide note followed by suicide would involve premeditation, and where real or perceived grievances may play a part as you have pointed out. But dying declaration is applicable when someone else has made an attempt on the life of the victim; and in such a situation it is highly unlikely (though not impossible) that victim will name ‘B’ as the culprit when ‘A’ has been responsible. What to me was of great interest is how customs or conventions with no basis in law through unchallenged usage soon start masquerading as law.Thanks for inputs and regards, Sadanand Patwardhan

  3. Sadanand Patwardhan Says:

    I was to write on another very important feature of Indian Evidence Act (for fair administration of criminal justice) as a part of the post, but lost the plot somewhere along the line. Those who follow legal news in the papers know that Confession extracted from an accused when in police custody if denied by the accused before Court is invalid; except if charges under some draconian laws like UAPA or MCOCA, which hold confessions made to police officers of designated ranks and above as valid, are pressed by police into service. Police are known to resort to this mischief to make life of accused difficult and their's easier often as simple expediency. However, in normal cases, section 26 and 27 of Evidence act make such confessions to police, custodial or otherwise, invalid.quote25. Confession to police officer not to be provedNo confession made to a police officer shall be proved as against a person accused of any offence.26. Confession by accused while in custody of police not to be proved against him.No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate,shall be proved as against such person.unquoteHowever, an advocate from Rajasthan, Maniram Sharma, drew my attention to another mischief resorted to by the police. In fact he wrote an open letter to Minister of Law and Justice -a post Kapil Sibal, SC Lawyer, recently came to occupy- on this topic that could be found at the following link (https://groups.google.com/forum/#!searchin/bharat-chintan/maniram$20/bharat-chintan/Qoq_mYcJ3GI/PBwahYXEHg4J)He argues this is done through the medium of section 27.quote27. How much of information received from accused may be proved.Provided that when any fact is deposed to as discovered in consequences of information received from a person accused of any offence, in the custody of a police officer, so much of suchinformation, whether if amounts to a confessions or not, as relates distinctly to the fact thereby discovered, may be proved.unquoteIf police claim successfully that a confession in custody led to some **discovery of fact**, then that portion of the confession will remain valid by disregarding the mode of extraction of the subject confession.

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